Before GOODRICH and KALODNER, Circuit Judges, and MADDEN, District Judge.
This is an appeal from an order of the District Court, 7 F.R.D. 420, dismissing the complaint filed herein as to the defendant, Esther Hofkin, individually and trading as Penn Galvanizing Company, for lack of jurisdiction as to the named defendant.
The complaint alleges that the plaintiff, George I. Pearce, is a citizen of Philadelphia, Pennsylvania; that the defendant, Pennsylvania Railroad, is a corporation of the Commonwealth of Pennsylvania, and that Esther Hofkin is engaged in business at 2201 E. Tioga Street, in the City and County of Philadelphia and State of Pennsylvania.*fn1
The complaint then alleges a cause of action substantially as follows:
That the plaintiff, Pearce, was an employee of the defendant, Pennsylvania Railroad, a common carrier engaged in interstate commerce. That the defendant, Hofkin, owns and operates a building at 2201 E. Tioga Street, Philadelphia, Pennsylvania and is in business at that location. That on July 12, 1945, the plaintiff was engaged in a shifting operation of a train of the defendant, Pennsylvania Railroad Company, on a railroad siding leading into the plant owned by the defendant, Hofkin. Due to an unsafe condition of a walkway beside the track, plaintiff lost his balance and fell to the ground, suffering certain injuries. The complaint alleges that these injuries were caused by the defendants' negligence.
The action against the defendant, Pennsylvania Railroad, is based upon its negligent failure to provide a safe place to work for its employees and the action against the defendant, Hofkin, is based upon alleged negligent violation, of the common law duty, to provide a reasonably safe place for its invitees.
The paragraph of the complaint alleging jurisdiction in the Federal District Court is as follows:
"This action arises under the Act of Congress, April 22, 1908, C. 149, 35 Stat. 65 and amendments thereto, U.S.C.A. Title 45, § 51 et seq., and further amended by the Act of Congress approved by the President of the United States on August 11, 1939, Chapter 685 - 1st Session of the Congress, known and cited as 'The Federal Employers' Liability Act,' and under the Safety Appliance Acts, Title 45 U.S.C.A. §§ 1-23 inclusive, and under the Common law of Pennsylvania."
It, therefore, appears, and the lower Court held, that the complaint alleges alternative causes of action against the two defendants, in an effort to recover against either or both defendants in accordance with the facts, as they may develop at the trial, against the defendant, Pennsylvania Railroad, under the Federal Employers' Liability Act*fn2 and the Safety Appliance Act*fn3 and against the defendant, Hofkin, under the common law of Pennsylvania.
It was conceded by plaintiff-appellant that in a separate suit against the defendant, Hofkin, the lower Court would have been without jurisdiction because of the lack of diversity of citizenship between the parties, but it is argued by plaintiff by joinder of this common law action with the action wherein the Court did have jurisdiction over a different defendant, it gives jurisdiction to the Court. Counsel urges three points in support of his contention. First, that a Federal Court having acquired jurisdiction, by reason of a substantial Federal question involved, has the right to decide all the questions in the case, even though it decided the Federal question adversely to the party raising them; second, that the suit against Hofkin is ancillary to the suit against the railroad and, therefore, jurisdiction should be retained; and third, that the defendant, Pennsylvania Railroad, would have the right to bring in the defendant, Hofkin, as a party defendant in a third party action and, therefore, all that he, the plaintiff, has done is to prevent a circuity of action by bringing the one complaint against both defendants.
Taking the points up in order it is true, as a general rule, that a Federal Court having acquired jurisdiction by reason of a substantial Federal question involved, has the right to decide all questions in the case, even though it decided the Federal question adversely to the party raising them or even if it omitted to decide them at all, but decided the case on local or state issues only. Siler v. Louisville & Nashville RR Co., 213 U.S. 175, 191, 29 S. Ct. 451, 53 L. Ed. 753. But it is likewise true that the rule has been limited by the Supreme Court in Hurn, et al v. Oursler, et al, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 where Mr. Justice Sutherland, speaking for the court, said at pages 245 and 246 of 289 U.S., at page 589 of 53 S. Ct.:
"But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct nonfederal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in thf latter it may not do so upon the nonfederal cause of action."
It is the opinion of the Court that the present case is clearly in the latter class as defined by the Supreme Court in the Hurn opinion, supra. There is here the joinder of a federal cause of action with a non-federal cause of action; the federal cause of action being the action against the railroad under the Federal Employers' Liability Act and the Safety Appliance Act, the Court having jurisdiction, and the non-federal cause of action being the action against Hofkin under the common law of Pennsylvania, the Court being ...